Fifth Circuit: No Attorneys’ Fees in a Mixed-Motive Retaliation Case If the Employer Proves That the Employee Would Have Been Fired Anyway

In Carter v. Luminant Power Services Co., No. 12-10642 (5th Cir. April 3, 2013), the Fifth Circuit addressed an unusual question of statutory construction relating to Title VII. The plaintiff had complained to his employer about race discrimination. His employer subsequently disciplined him. The plaintiff brought a Title VII action, claiming that the discipline constituted retaliation for his complaints.

The trial court allowed the case to go to the jury on a "mixed-motive" theory, asking whether retaliation was a motivating factor for the discipline. This is based on section 2000e-2(m), which states:

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

The jury answered in the affirmative.

The trial court also asked the jury whether the employer had proven that it would have made the same decision irrespective of the complaints. This is based on section 2000e-5(g)(2)(B), which states:

On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-

(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

The jury again answered in the affirmative. As a result of that jury finding, the plaintiff could not recover damages and could not be reinstated.

In an ordinary case, the plaintiff would still be entitled to recover his attorneys' fees and costs. But what about a retaliation case? The court noted that section 2000e-2(m) did not list retaliation as one of the grounds of relief. It only lists "race, color, religion, sex, or national origin." The court concluded, therefore, that the plaintiff's attorneys' fees were not recoverable because they were not "directly attributable only to the pursuit of a claim under section 2000e-2(m)." The court stated:

This omission is of great import. Title VII contains both a “core antidiscrimination provision” and an “antiretaliation provision.” Congress divided these provisions across separate sections. Section 2000e-2(a) proscribes discrimination against an individual “because of such individual’s race, color, religion, sex, or national origin.” Section 2000e-3(a)—the anti-retaliation provision—proscribes discrimination against an individual because “he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Section 2000e-2(m) conspicuously tracks the impermissible factors set out in § 2000e-2(a), while making no mention of § 2000e-3(a). From this omission, we infer that Congress did not intend for § 2000e-2(m) to reach retaliation claims.

This may seem to be a peculiar result, given that section 2000e-5(g)(2)(B) applies only if the plaintiff "proves a violation under section 2000e-2(m)." In other words, under the court's logic, the employer's defense would not even be available in a retaliation case because retaliation is not a claim under section 2000e-2(m). In fact, taking the court's logic one step further, the mixed motive rule of section 2000e-2(m) should not even apply in a retaliation case, because retaliation is not one of the claims listed in that section.

The latter issue is pending before the Supreme Court this term in the Nassar case, which is discussed here. If the Supreme Court rules that "mixed motive" does not apply in retaliation cases, then the Fifth Circuit's holding in Carter becomes moot. However, if the Supreme Court rules that "mixed motive" analysis applies in retaliation cases, it will be difficult to reconcile Carter with that result.

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